Massachusetts Threatens Website For Publishing Info It Gave The Site After A FOIA Request

from the locking-up-of-information dept

An anonymous reader sends over the news that the website MuckRock.com -- an open records website -- has received a threat letter from the Massachusetts Department of Transitional Assistance, concerning some food stamp data that MuckRock had published. How did MuckRock get the data? It had filed a Freedom of Information Act request to the Massachusetts Department of Transitional Assistance, who gave it to them. Apparently, the department now realized that it released the data in error and is trying to erase the mistake by ordering the site to delete the info.

I am writing to inform you that certain information found on the website http://www.muckrock.com, which lists individual retailer redemptions for the Supplemental Nutrition Assistance Program (SNAP), is posted in violation of federal law.. [sic] This information was erroneously released by the Department of Transitional Assistance to Spare Change News. Federal law prohibits release of such information under 7 U.S.C. 2018(9)(c), and 7 CFR 278.1(q).

Failure to remove this information may result in fines or imprisonment. 7 U.S.C. 2018(9)(c) (“any person who publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by Federal law (including a regulation) any information obtained under this subsection shall be fined not more than $1,000 or imprisoned not more than 1 year, or both).

The Department has told the press that it was the federal government which alerted it to the mistake and the department decided to inform the MuckRock owner that he might face potential legal problems from the federal government, but didn't intend the letter to be a direct threat from itself. Of course, now that the news of the demand has been made public, the original information will only get that much more attention...

“any person who publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by Federal law (including a regulation) any information obtained under this subsection shall be fined not more than $1,000 or imprisoned not more than 1 year, or both"

Huh. Well, the Department of Transitional Assistance is going to jail then, aren't they? They published, divulged, disclosed, and made known this information.

Wait...what do you mean the law doesn't affect the government itself? What kinda crappy country allows that?

To the extent allowed by Federal law

"...to the extent allowed by Federal law" means the U.S. Constitution. The first amendment to the Constitution essentially states that the freedom of the press shall not be infringed. This trumps any so-called Federal law. If the New York Times cannot be prosecuted for divulging classified information, then neither can that website.

Once it's out there, it's out there and there's no taking it back. Next time, don't release the information, instead of trying to shift the blame.

Bartnicki v Vopper (2001)

Justice Stevens delivered the opinion of the Court.

. . .

As a general matter, “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979). More specifically, this Court has repeatedly held that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.” Id., at 103; see also Florida Star v. B. J. F., 491 U.S. 524 (1989); Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978).

Re: Bartnicki v Vopper (2001)

Re: Bartnicki v Vopper (2001)

"if a newspaper lawfully obtains..."

This is where you hit a snag. The legality of the release of that information is under question. The state may not have had the legal right to release said information, therefore making it illegal for the site to have the information in the first place. Ignorance of this does not absolve them from following the law. That being said, since they couldn't have known that the information was illegally obtained, there's probably an argument there.

Re: Re: Bartnicki v Vopper (2001)

The constitutional question before us concerns the validity of the statutes as applied to the specific facts of this case. Because of the procedural posture of the case, it is appropriate to make certain important assumptions about those facts. We accept petitioners’ submission that the interception was intentional, and therefore unlawful, and that, at a minimum, respondents “had reason to know” that it was unlawful.

(Emphasis added.)

The court distills the issue into a simple question:

Simply put, the issue here is this: “Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?”

The court's bottom line answer to that question? Justice Stevens concludes:

[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.

Transparency again

Normally, I am very impressed by your care in accurate reporting, and I continue to read your blog devotedly because of that. Here, you missed:
"Apparently, the department now realized that it released the data in error and is trying to erase the mistake by ordering the site to delete the info."
No. They were complying with Federal Law. Should the law be changed? Sure. Different issue.